When doctors make mistakes

One in three families has the trauma of experiencing a serious medical error. If things go wrong, would your doctor confess his slipup? And would you sue?

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Lying in bed, Judy Mays ran her hand over her stomach, trying to soothe the pain. In the four months since her son was delivered by cesarean section, nearly every morning had started the same way: She’d take a few deep breaths and slowly roll herself off the bed sideways onto the floor, wincing as if stabbed in the abdomen. This day, however, as she touched her belly, she felt a hard, softball-sized lump in her lower abdomen. It seemed to have emerged overnight.

Mays, a bookkeeper and single mother in Beloit, Ohio, had never had a C-section before. So she had trusted her obstetrician, Compton Girdharry, M.D., when he told her not to worry about the postoperative pains in her side. Pockets of air, she says he called them. All part of a normal recovery. “I had to sleep in a chair for the first three weeks, because if I lay down I couldn’t get up,” says Mays, now 41. “It was crippling. I couldn’t even pick up the baby.”

Her mother helped her care for her newborn and two older sons, and when the pain got so strong that Mays couldn’t sit up to get out of bed in the morning, she learned to roll herself onto the floor. But this lump was a new and terrifying development. Mays struggled out of bed, and she headed for the phone to call her doctor’s office. It’s a tumor, she thought. Cancer.

At Dr. Girdharry’s office, an associate felt the mass and, baffled, sent Mays to the hospital for a CT scan. “After the scan, the technician walked me down the hallway,” she recalls. “The only thing he said was, ‘Who was the doctor who did your C-section?'” At those words, her knees went weak. She went home and waited, dread now aggravating the racking ache in her gut. That afternoon, Dr. Girdharry called and told her she had a surgical sponge sewn up inside her abdomen. It was nearly 1 foot square in size.

Her faith in her doctor was shaken but not yet destroyed by the mistake, which he attributed to the delivery-room nurses. He suggested a laparoscopy, which allows doctors to inspect internal organs by threading a narrow tube with a camera through an incision of about 1 inch near the belly button, in order to make any necessary repairs. “All I kept thinking,” she says, “was how will they get this grapefruit-sized thing out of a tiny hole?” According to Mays, Dr. Girdharry exuded confidence. The next morning, she left her boys with her mother and went to Alliance Community Hospital, expecting that she would be home by dinnertime.

But in surgery, the doctor found a mess. Mays’s intestines, she says, were twisted around the sponge, which was disintegrating into bits and causing thousands of perforations in her intestinal wall. With Mays still under anesthesia, Dr. Girdharry called in a specialist, who made an emergency decision to remove her appendix as well as a third of her large and small intestines, permanently damaging her ability to digest food.

A 40-minute laparoscopy morphed into four-hour open surgery. When Mays regained consciousness, she groggily ran her fingers down her torso and felt herself taped from pelvis to chest. “I panicked,” she recalls. “I thought, What did they do to me? I called the nurses and they said, ‘We can’t tell you what happened. The doctor has to.'”

Mays doesn’t remember speaking with Dr. Girdharry on that first day. She did see him the next day, however—as he crossed her room to visit the patient in the next bed. “I don’t think he planned on stopping,” she says, but she flagged him down. “How bad is the damage?” she remembers asking. She feared she’d had a hysterectomy and asked if that was true.

“The other doctor will be here soon to talk to you,” was his only response, Mays says. “He wouldn’t elaborate or answer direct questions,” she adds. “He couldn’t wait to get out.” She never saw him again.

Traditionally, being a doctor means never having to say you’re sorry—or even disclose your mistakes to patients. An estimated one third of Americans say they or a family member have been harmed by a medical error, but only 28 percent of the victims were alerted to the misstep by the health-care provider who was involved, according to a November 2004 survey by the Kaiser Family Foundation in Menlo Park, California. Six years ago, a landmark study by the Institute of Medicine in Washington, D.C., found that each year, as many as 98,000 Americans are killed by medical error—the equivalent of a commercial plane crash a day.

When things go awry, an experience like Mays had—her bafflement, her doctor’s sudden silence—is the rule, not the exception, says Rosemary Gibson, author of Wall of Silence (LifeLine Press), a book examining medical errors. Gibson has interviewed scores of victims of medical mistakes and their families and says, “Some doctors literally run away and hide. One told a woman whose mother had died of a morphine overdose that it was better she went this way, because she would have died within five years anyway. They just don’t know how to do it! They have never been taught.”

In fact, doctors typically learn as early as medical school not to explain bad outcomes—lest their words be used against them in court, says Jonathan Cohen, a law professor at the University of Florida in Gainesville who specializes in dispute resolution. Defense lawyers routinely advise doctors not to admit fault to a patient after an error and to let the lawyer do all the talking. Often, Gibson says, the only communication patients have with the doctor or hospital who injured them is a bill for services rendered.

Doctors fear lawsuits with good reason. With jury verdicts occasionally reaching millions of dollars, physicians in high-risk specialties such as obstetrics or neurosurgery now pay $200,000 or more a year for malpractice insurance; 21 states face provider shortages as ob/gyns, trauma surgeons and others cut back on risky procedures or close up shop altogether, according to the American Medical Association in Chicago. Doctors and insurers blame greedy trial lawyers; attorneys accuse malpractice insurance companies of mismanaging their investments, soaking clients to make up the difference and exaggerating the doctor shortage for political gain. For years, the insurance and medical industries have been begging Congress to cap the amount of the money a patient can win for noneconomic damages at $250,000, and President Bush has declared liability reform to be one of his top priorities.

In this atmosphere of fear and acrimony, a small band of researchers, doctors, lawyers and insurance-company executives has put forth an alternative theory: What if doctors’ efforts to avoid malpractice suits are the very thing that is provoking them? “The wall of silence leaves a family full of understandable anger and rage,” Gibson says. “Legal action may be the only way for some patients and families to get the answers they need.” Research at the University of Missouri at Columbia School of Law suggests that apologies make victims less likely to litigate, finding that 73 percent of victims in a personal-injury case would be likely to accept a settlement offer if it came with a full apology; without it, only 52 percent would accept. When a Veteran’s Affairs Hospital in Lexington, Kentucky, put theory into action and began routinely disclosing errors, its average malpractice settlement fell far below national averages for VA hospitals.

Encouraged by this evidence, several major hospitals have vowed to break with tradition and level with patients. By clearly disclosing mistakes, they also hope to better track when and why they are made—and stop them from happening again. “Preventing a lawsuit isn’t the only value to apologizing,” Cohen says. “It’s the morally correct thing to do.”

Judy Mays spent six days in the hospital and months more recovering at home. She says she will have severely reduced bowel function for the rest of her life. Her friends and family urged her to sue immediately. But she was reluctant. “I am a Christian and never sued anybody before,” she says. “Even though I still have pain and it will continue, I know that people are human.” But when Mays received a bill for thousands of dollars from the hospital for the second surgery—insult heaped onto the initial injury—she decided to go to court. In 2000, she received an out-of-court settlement (the amount is sealed) from Dr. Girdharry and Alliance Community Hospital, who didn’t return calls for comment. “Neither the doctor nor the hospital ever stepped forward to say, ‘Yes this happened, we feel bad that you suffered,'” she says. “I would not have sued if either party had showed just the smallest bit of human compassion. This was never about money for me.”

Gerald Hickson, M.D., a pediatrician and head of Vanderbilt University’s Center for Patient and Professional Advocacy in Nashville, has for two decades studied the reasons why some patients sue when others with similar injuries do not. “We were struck by how often there was a noneconomic issue that seemed to drive decisions,” he says. “Some families told us they felt as though the medical professionals were hiding things.” Other research confirms his findings: We sue not primarily for money, but rather to gather information, to protect others from getting hurt, for closure or revenge. We sue, at the most basic level, because our doctor hurt our feelings.

Seventeen years ago at Lexington VA Medical Center, then–chief of staff Steve Kraman, M.D., stumbled on a case in which “clearly a patient had been killed by an accidental overdose of medication, no question,” he says. “We all sat down and decided we couldn’t live with sweeping it under the rug.” The hospital summoned the surviving family members, who believed their relative had died of natural causes, and told them to bring a lawyer. Administrators disclosed the error, and the family soon agreed to accept an out-of-court settlement—one of 170 the hospital has negotiated since then. “Because we make lawsuits unnecessary, we can speak about errors in the open and keep records of them,” Dr. Kraman says. “That allows us to identify problems and attack them.”

As a government-run hospital, the medical center has advantages that make it less risky for a doctor to come clean: VA doctors and hospitals are insured by the U.S. Treasury rather than private insurers, which could jack up rates after a mistake. Still, its results are tantalizing enough to have persuaded major hospitals, including Johns Hopkins University Hospital in Baltimore, the Dana-Farber Cancer Institute in Boston, the University of Michigan Health System in the Ann Arbor area and Children’s Hospitals and Clinics in Minneapolis and St. Paul, to also implement policies of “extreme honesty.”

Meanwhile, at least 17 state legislatures (Arizona, Colorado, Georgia, Illinois, Louisiana, Maine, Maryland, Missouri, Montana, New Hampshire, North Carolina, Ohio, Oklahoma, Oregon, Virginia, West Virginia and Wyoming) have specifically protected doctors’ apologies from being used against them in court—over the objections of malpractice attorneys, who argue that the laws make it harder for plaintiffs to pursue valid claims. To partly address these concerns, some of the laws give protection to expressions of sympathy (“I’m sorry you were hurt”) but not to admissions of fault (“I’m sorry I hurt you”).

Changes in law and hospital policy have put the ball in the doctors’ court. After years of stonewalling patients, they are being told they need to reach out—not only after an error, but during every appointment. That’s because people are much more likely to sue doctors that they already don’t like or trust. A tiny group of physicians (2 percent to 8 percent) accounts for between 20 percent and 40 percent of all malpractice claims, Dr. Hickson says. And when he looked for the common trait among these M.D.s, he was surprised to find that it wasn’t incompetence or even extraordinarily sick patients, but simply poor people skills. “The reality is, these individuals had difficulty connecting with their patients emotionally,” he says.

The vast majority—perhaps 80 percent—of all malpractice claims are generated by doctors’ behavior and relationships with their patients, rather than any single mistake, estimates Michael S. Woods, M.D., a surgeon in Cortez, Colorado, who trains doctors in the art of communication. “Over a long period of time, there are small violations of trust,” Dr. Woods says. “The physician is consistently late and never apologizes. He says he will call the lab for the patient and then doesn’t. That’s what makes people angry. Then, in the event of an unexpected outcome, the willingness to file a claim is so high already that suddenly it’s game over.”

Julie Gelman, M.D., long ago decided to be the kind of doctor who feels her patients’ pain. The 40-year-old ob/gyn left her practice in Denver a few years ago to set up shop in the small ski town of Frisco, Colorado, in part because, she says, “in the city I never saw the same patients twice; they were always switching insurance. How can you build a relationship with anyone? I hated it.” She makes a point of learning one thing about each patient’s life—a new job, a bike trip to Italy—at one appointment and then mentioning it again at the next. “I don’t do it not to get sued,” Dr. Gelman says. “I do it so that my job is fun. If I don’t get sued, that’s a luxury.”

In medical school, she says, “they taught us, ‘Don’t be defensive. Be factual, be direct, and if bad things happen, explain it, but not as if you did something wrong.'” She is about to hear otherwise for the first time in her career. She’s driven down from the mountains to Denver to participate with a dozen other doctors in a seminar offered by Colorado’s doctor-run insurance company, Copic. Its goal: to help doctors deal more openly with their errors.

The doctors convene in a conference room presided over by Dennis Boyle, M.D., a rheumatologist who leads these empathy workshops. His audience this morning includes surgeons, obstetricians, ophthalmologists and nurse-practitioners. “What percent of information do patients get from your words?” he asks them. “Ten percent! The rest is body language.” Research says patients think they have spent more time with a doctor who sits down versus one who remains standing, he points out.

Dr. Boyle then turns to a series of videotaped vignettes, showing actors as doctors delivering bad news to patients. The final tape shows a young male doctor waking up an elderly man to apologize for doing complicated arterial bypass surgery on the wrong leg. After asking participants to critique the vignette, Dr. Boyle concludes that while the young doctor used all the right words, his body language and approach—including standing over the still-groggy, supine man and trying to force the patient to focus on a plan of action—were all wrong.

It’s best, he tells the doctors, to choose your words precisely and plan your delivery of bad news ahead of time. And it’s important to let patients know they have options. A “sorry, and we’ll try to fix it and make sure it doesn’t happen again” kind of apology rings more true than a qualified “sorry, but it wasn’t really my fault” apology. Still, he advises the doctors to save the details of their fix-it plans for a second meeting; a patient who has just had the wrong leg operated on needs a day or two before discussing what comes next.

After two and a half hours, Dr. Boyle sends Dr. Gelman and his other pupils back to their practices. “This seminar won’t keep you from cutting off the wrong leg,” he warns them. “But if you do, ‘sorry’ works.”

Carrie Maddox, 39, is a blonde, soft-featured Denver personal assistant who was well on her way to becoming another medical malpractice plaintiff. Four years ago, married and with an 18-year-old son, Maddox and her husband were trying to have another child. But after three ectopic pregnancies, her ob/gyn, Susan Harding, M.D., was forced to perform a laparoscopy to remove one of her fallopian tubes. During the surgery at Swedish Hospital in Denver, the equipment malfunctioned slightly, making it more difficult to remove the tube and the ectopic pregnancy tissue. Maddox seemed to be fine.

Six weeks later, she woke up in the middle of the night with severe pain. At the hospital, emergency surgery found evidence of internal bleeding, but the cause was never determined. When she woke up, Maddox was most concerned about one thing: money. Her blue eyes still fill up when she talks about it. “My husband and I had decided we wanted to adopt. I didn’t have insurance, and I knew that the hospital bill was going to mean I couldn’t afford to adopt.”

Her doctors were showing a great deal of concern, even though no one could explain the bleeding. “The doctor who performed the original laparoscopy, the doctor who performed the second surgery and the senior doctor of the ob/gyn practice all came in to see me. Even though I got no news, I felt like a human being in there. They talked to me, which was a big deal. They didn’t just ignore me and let me go home.”

Then the bills started rolling in, including one from the hospital for $12,000 for the second surgery. Maddox began to consider a lawsuit solely to get her debts paid. But as she began the process of obtaining her medical files, Dr. Harding’s office called and told Maddox she qualified for a new program offered by her doctor’s insurance company, Copic. In addition to training doctors to be more open and apologetic after errors, Copic has for the last six years reached out to people harmed by medical mistakes and offered restitution of up to $30,000. Although that’s not a huge sum, the program seems to work because patients feel cared for and it gives physicians an opportunity to solve their patient’s problems, says Ted Clark, M.D., CEO of Copic, which covers nearly 7,000 doctors in Colorado and Nebraska. More than 1,000 patients have been through the program so far, and only five have subsequently sued their doctors.

Maddox called Copic, and within a few days, the company agreed to cover all her medical bills. In the end, she didn’t sue. In fact, she is still in the care of the same gynecological practice.

And Judy Mays? Last she heard of Dr. Girdharry, he was standing onstage at a Bush campaign rally against “frivolous” lawsuits, complaining about the malpractice premiums that had driven him out of business. The money Mays won still hasn’t erased her bitterness. “It’s about basic human kindness,” she says. “And that’s absolutely free.”